United States v. Boyce ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60517
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES O. BOYCE and MARGARET BOYCE,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Mississippi
(1:94-CR-23)
October 7, 1996
Before SMITH and PARKER, Circuit Judges, and JUSTICE*, District
Judge.
PER CURIAM:**
Appellants James Boyce and Margaret Boyce challenge their
convictions for wire fraud and conspiracy to commit wire fraud. We
*
District Judge of the Eastern District of Texas, sitting by
designation.
**
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
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affirm.
FACTS AND PROCEEDINGS
James Boyce and his wife Margaret Boyce owned and operated a
clinic where people seriously ill with diseases such as cancer,
AIDS and multiple sclerosis were given treatments that were not
approved by the Food and Drug Administration (FDA) for those
illnesses. The patients paid for their treatments by wire
transferring money into the Boyces’ bank accounts prior to
receiving treatments. The Government characterizes the treatments
as bizarre and dangerous. The defendants term the treatments
experimental, alternative and “unapproved.”
The Boyces were indicted for conspiracy to commit wire fraud
and for 24 counts of wire fraud. The district court granted a
motion for judgment of acquittal on 16 of the wire fraud counts at
the close of the government case. James Boyce was convicted of the
conspiracy count and eight wire fraud counts. He was sentenced to
60 months in prison and ordered to pay $112,243.85 in restitution.
Margaret Boyce was convicted of the conspiracy count and one wire
fraud count. The jury deadlocked on the remaining wire fraud
counts as to Margaret Boyce, and the district court ordered a
mistrial on those counts. The district court departed downward and
sentenced Margaret Boyce to two years probation and $8,800 in
restitution.
DISCUSSION
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Both Appellants claim that the evidence is insufficient to
support their convictions. A review of the record reveals evidence
sufficient to allow the jury to infer that Margaret Boyce knew
enough about the clinic to satisfy the mens rea requirement of the
conspiracy charge and that the use of interstate wire communication
was foreseeable to her. See Pereira v. United States, 347 U.S. 1,
8-9, 74 S. Ct. 358, 98 L. Ed. 435 (1954). Likewise, the evidence
was sufficient for the jury to infer that James Boyce knew that his
claimed cures were false and fraudulent. United States v. Keller,
14 F.3d 1051, 1056 (5th Cir. 1994).
Margaret Boyce complains that the district court abused its
discretion in denying her mid-trial motion for severance.
Requests for severance under Rule 14 must be raised prior to trial.
FED. R. CRIM. P. 12(b)(5). “Failure by a party to . . . make
requests which must be made prior to trial . . . shall constitute
waiver thereof, but the court for cause shown may grant relief from
the waiver.” FED. R. CRIM. P. 12(f). Margaret Boyce did not
establish in the district court or on appeal that her failure to
timely move for severance should be excused. See United States v.
Tolliver, 61 F.3d 1189, 1198-99 (5th Cir. 1995), cert. denied, 116
S. Ct. 1445 (1996).
James Boyce contends that the district court erred in denying
his motion for a video deposition or a continuance due to the
illness of his expert, Dr. Carpendale. Because the jury heard
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testimony covering essentially the same ground about which Dr.
Carpendale was expected to testify -- the alleged benefits and
scientific bases of ozone treatment -- from credentialed witnesses,
he was not materially prejudiced by the district court’s denial of
his requests. Therefore, the district court did not abuse its
discretion in denying James Boyce’s motion for deposition or
continuance. See United States v. Scott, 48 F.3d 1389, 1394 (5th
Cir.), cert. denied, 116 S. Ct. 264, 133 L. Ed. 2d 187 (1995).
Finally, we find no abuse of discretion in the district
court’s denial of James Boyce’s motion for mistrial due to the
media coverage of the trial. The district court questioned and
admonished the jury on both occasions when James Boyce brought the
media coverage to his attention. The district court’s collective
inquiry to the jury, to which no juror responded, followed by no
further requests for remedy by James Boyce, was within the range of
responses which the district court had the discretion to employ.
See United States v. Aragon, 962 F.2d 439, 443 (5th Cir. 1992).
For the foregoing reasons, we affirm the convictions of James
Boyce and Margaret Boyce.
AFFIRMED.
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